Citation Nr: 1209109
Decision Date: 03/09/12 Archive Date: 03/19/12
DOCKET NO. 09-10 308 ) DATE
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On appeal from the Department of Veterans Affairs Educational Center at the Regional Office in St. Louis, Missouri
THE ISSUE
Eligibility for Dependents' Educational Assistance under the provisions of Chapter 35, Title 38, United States Code.
ATTORNEY FOR THE BOARD
N. T. Werner, Counsel
INTRODUCTION
The Veteran served on active duty from July 1968 to July 1970.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 administrative decision by the Department of Veterans Affairs (VA) Educational Center at the Regional Office (RO) in St. Louis, Missouri. In June 2010, the Board remanded the appeal.
In April 2011 and again in September 2011, the claimant failed to show for hearings she had requested in connection with her appeal. Because good cause was not shown for her failure to appear for these hearings, the Board finds that VA adjudication of the appeal may go forward without rescheduling her for yet another hearing.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
A review of the record on appeal reveals that almost all of the claimant's records in connection with her claim for Dependents' Educational Assistance, including the June 2008 administrative decision, the statement of the case, and the June 2010 remand, are no longer associated with the claims file. In February 2012, after discovering that the record that had been certified to the Board was missing these records, possibly because they were in a separate Educational File, the Board informally contacted the RO and asked that a search be undertaken to find the missing records. This effort, however, did not meet with any success.
Therefore, the Board finds that it must once again remand the appeal so that formal steps may be undertaken to search for the appellant's missing records, including any separate Educational File, and if the missing records cannot be located, to attempt the reconstruction of the record. See 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 19.9 (2011); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the veteran to attempt to obtain them); Bernard v. Brown, 4 Vet. App. 384, 393 (1993).
Accordingly, the appeal is REMANDED to the RO/AMC for the following actions:
1. The RO/AMC should obtain and associate with the claims file all of the appellant's records in connection with her claim for Dependents' Educational Assistance, including the June 2008 administrative decision, the statement of the case, and the June 2010 remand, including any separate Educational File.
2. If any of the missing records cannot be located, the RO/AMC must then make an effort to reconstruct the claims file.
3. The RO/AMC should fully document all its actions to obtain and/or reconstruct these missing records. Because these are Federal records, efforts to obtain or reconstruct them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain or reconstruct the missing records would be futile. If any of the missing records cannot be found or reconstructed, a memorandum outlining all steps taken to obtain and/or reconstruct the records should be prepared and a copy of this memorandum should be provided to the Veteran and placed in the claims file.
4. Thereafter, the RO/AMC should readjudicate the claim. If the benefits sought on appeal remains denied, the appellant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence received and any evidence not received, and all applicable laws and regulations considered pertinent to the issue currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals
for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).